The NSW Independent Commission Against Corruption is not smearing
Arthur Sinodinos
, despite suggestions to the contrary by Trade Minister
Andrew Robb
on March 23. Sinodinos is in far greater danger of being smeared on social media by people who unleash mindless abuse against people they dislike. In explaining his changes to the Racial Discrimination Act, the Attorney-General
George Brandis
defended the right to say things that others “find offensive or insulting". But this is unlikely to occur to anything like the same extent in the usually polite ICAC hearing room, as in online forums.

Sinodinos has stood aside as Assistant Treasurer while ICAC investigates the company he chaired,
Australian Water Holdings
. But he is not a victim of ICAC’s failure to be more like a court, as Robb and the commentator
Peter van Onselen
recently argued on SkyNews. The rules governing ICAC hearings are similar to those applying to the royal commissions established by the Abbott government, partly to investigate the alleged misdeeds of former Labor prime ministers
Julia Gillard
and
Kevin Rudd
. The public generally accepts that royal commissions and anti-corruption bodies can make findings which do not protect reputations – regardless of what people do.

A key reason why bodies like the ICAC were established is that police investigators don’t always have the same distance from their political masters as independent statutory commissions. Checks and balances on such bodies are usually provided by their enabling legislation, parliamentary oversight committees, counsel for witnesses and the courts. These watchdogs can investigate misconduct stopping short of criminality, but were never meant to behave as courts. They can’t launch prosecutions; can’t send anyone to jail and can’t fine or otherwise punish them beyond making a finding of corrupt behaviour or misconduct.

At what price

Yet van Onselen claimed in a column on March 22 that ICAC and similar ‘star chambers’ in other states are very good at one thing in particular: besmirching reputations. He said they sometimes also expose corruption but at what price to our rule of law?

But they are ruled by the laws establishing them and subject to far more extensive judicial review than intelligence services and some other bodies.

Few NSW citizens would object to ICAC’s finding last July that two former NSW Labor ministers
Ian Macdonald
and
Eddie Obeid
, plus several wealthy businessmen, engaged in corrupt conduct in relation to a coalmining tenement covering rural properties. A separate ICAC inquiry made adverse findings against a former mining union official
John Maitland
who also obtained coalmining rights.

From a democratic perspective, ICAC made a powerful contribution to transparency with its detailed revelations about how the NSW Labor Party let Obeid, in his combined role of a businessman and faction boss, effectively control a state government, including appointing and removing premiers. Apart from its findings, it referred matters it uncovered to prosecutors, the tax office, corporate regulators and the state crime commission.

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Van Onselen complains that ICAC does not adhere to rules of evidence applying in courts. It doesn’t, because it’s an investigative body – unlike a court. Normally, incriminating evidence obtained from individuals by corruption commissions can’t be used against them in court. Despite understandable public concern that this may allow blatantly corrupt politicians to avoid a jail sentence, it is a safeguard worth keeping.

Issues raised

Sinodinos has denied any wrongdoing relating to ICAC’s latest investigation, which also involves Obeid. The hearings have raised issues about Sinodinos’s discharge of his duties as an AWH director. These include donations to the Liberal Party that it charged to the government-owned Sydney Water while Sinodinos was AWH’s chairman and the party’s state treasurer.

In his opening address, ICAC’s counsel assisting
Geoffrey Watson
said AWH appointed Sinodinos to its board in 2008 “to open lines of communication with the Liberal Party [and] there will be evidence that he tried to do so". Watson said Sinodinos would have “enjoyed a $10 [million] or $20 million payday" if the company won a big public private partnership with Sydney Water. The last Labor government rejected the PPP on cost benefit grounds, but AWH signed an exclusive 25-year deal with Sydney Water after the Liberals won the 2011 state election. Sinodinos is represented by senior counsel and will have his say when he is a witness in a few days, and later in a related investigation.

In speaking freely in ICAC, the usually courteous Sinodinos is unlikely to exercise what Brandis on Monday in the Senate called the “right to be a bigot". In stressing bigotry as a right, Brandis might have copped less criticism if his statement had included the usual conservative focus on responsibilities. On Thursday, the NSW Liberal Premier
Barry O’Farrell
said, “Bigotry should never be sanctioned . . . There is no place for inciting hatred within our Australian society." Meanwhile, ICAC has rebuffed an attempt, reportedly linked a former state Liberal ministerial staffer, to smear the ex-head of Sydney Water
Kerry Schott
with a false complaint that she is corrupt.